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Norfolk, Plymouth DAs take opposite views
One will bargain if needed; the other refuses to deal
One district attorney views plea agreements as a legitimate way to tag bad guys with criminal records rather than risk a not guilty verdict at trial or make a witness endure the difficulty of testifying.
The other abhors the idea of bargaining down charges and says he doesn't do it.
The top prosecutors for Norfolk and Plymouth counties have substantially different stances when it comes to striking deals with defendants, and those attitudes play a role in shaping the way justice is carried out.
Norfolk County District Attorney William Keating said he doesn't have any hard-and-fast policies about when pleas are worth considering, but said there are times when negotiating makes more sense than going to trial.
"We view cases on a case-by-case basis, looking at the facts, looking at the victims and their families," he said. "We look case to case at those unique facts and we proceed." (skip to text below)
"Plea-bargaining certainly does erode the public's trust in what goes on," he said. "A lot of people think it's back-room deals that they see on TV."
The result is that Plymouth County is far more likely than Norfolk - and every other county in the state, for that matter - to take cases to trial.
In the 12-month period ending June 30, 2004, 23 percent of Superior Court cases disposed of in Plymouth were done so through trials, compared with 10 percent in Norfolk County, according to statistics from the state's Superior Court Department. The state average was 13 percent.
Experts say both policies have their advantages and pitfalls when it comes to public safety.
Among the most obvious risks of the hard-line, anti-plea bargain approach is the uncertainty of a trial, said David Siegel, a criminal law professor at New England School of Law.
"Every trial, no matter how strong or weak the evidence, is an unknown outcome for the parties," Siegel said. "They take their best estimate of what is going to happen at trial and the risk of what they're afraid of, and they decide whether that risk is worth undertaking. A plea bargain is the way to avoid that risk."
The fact is, it isn't always like TV.
A Patriot Ledger review of cases that were initiated from 2002 through 2004 showed mixed results when cases go to trial.
For example, of seven Plymouth County murder cases initiated from 2002 through 2004 that went to trial, guilty verdicts were secured in three, but the defendants were acquitted in four others.
In Norfolk County, prosecutors won guilty verdicts in all five murder trials reviewed by The Ledger.
Cruz said the risk of losing is one he's willing to take.
"My goal here in every case is to try to get a just result. ... I feel I have an obligation to stand up for the victims in our communities," he said. "I think I have an obligation to stand up for people who want to be safe in their homes and safe on the streets.
"If that means that occasionally somebody is going to be found not guilty on a case, so be it."
Keating said that securing some sentence - even if it is probation - for pleading to a lesser charge is sometimes better than going to trial when a key witness doesn't want to testify or when evidence isn't especially strong.
"Certainly I think it's common sense that one of the outcomes can be establishing a criminal record versus going down in flames on a case, not bringing the case," Keating said. "It's common sense to accomplish what you can for the safety of the victims. You'd get nothing otherwise except a free pass for the defendants."
Legal scholars said there are other, pragmatic reasons for prosecutors to plea-bargain: time and resources. Trials simply take longer to work their way through the system.
In Norfolk County, where plea agreements are more common, 8.4 percent of cases are more than three years old. In Plymouth County, where pleas are more rare, 14.5 percent of cases fall into that category.
"If you didn't make defendants offers to get them to plea, then they'd roll the dice with a trial," said Michael Cassidy, a Boston College law professor and a former assistant attorney general. "If every case went to trial, our system would be shut down. We do not have enough lawyers, clerks, courtrooms and sheriffs to hold them in lockup."
On the flip side, a system that relies heavily on pleas tends to be less public, Cassidy said. And he said one of the biggest risks of frequent plea-bargaining is that prosecutors sometimes overcharge defendants to give themselves more wiggle room when negotiating.
"The danger of overcharging is that it will create a perverse incentive for even the innocent to plead guilty," Cassidy said. "Take someone who has a long record of armed robbery and is a bad and dangerous person, but didn't happen to do this armed robbery. He knows that if the jury finds him guilty of doing it and the judge sees his list of priors, he's going to jail for a long time, so he has an incentive of pleading guilty to avoid getting whacked."
Site used to compile data has errors, Keating asserts
Norfolk County District Attorney William Keating said the state web site used by The Patriot Ledger to compile data invalidates the paper's findings because, he says, there are errors on the site.
The Ledger collected data from the Trial Court Information Center, a state-run subscription web site that tracks criminal and civil cases in Superior Court. It is used by 100,000 people including court officials, judges, lawyers and others.
Keating's office insisted three cases that included indictments for rape were wrongly listed on the site as indecent assault and battery. In all of those cases, the actual rape charge was dropped, dismissed or not pursued.
In a fourth case involving a rape charge, the web site listed the defendant as receiving no jail time, but Keating's office said the defendant was sentenced to 50 days.
His staff cited another rape case it said should have been included, but the Ledger did not account for it because the case was settled by plea after the newspaper compiled the data.
In addition, a spokesman for Keating emailed the Ledger 25 docket numbers - some pleas, some trials, some still active - that he said showed discrepancies between the actual charges and what was reported on the web site.
Joan Kenney, public information officer for the state Supreme Judicial Court, said that in the years the web site has been running none of the 100,000 users have notified the court of errors.
"The online Trial Court Information Center is a mirror image of case information compiled in Superior Court clerks' offices," Kenney said Friday. "The clerks' offices in each county do their best to enter accurate case information, which is then sent instantaneously to the online database. There have been no complaints that the online case information is incorrect."
If the Ledger factored in the three rape cases Keating's office said were wrongly omitted and the one case settled after data input was complete, the total number of forcible rape or attempted rape cases reviewed would have been 24.
Factoring in the additional cases, as well as the 50-day sentence not included on the court web site, the percentage of defendants in rape cases who received time behind bars increases from 45 percent to 58 percent.
The average minimum sentence increases from 1.7 years to 1.9 years.
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